Prince George's County v. Equitable Trust Co.

Lxss, J., delivered the opinion of the Court. This is an appeal from a final order reversing a decision to downzone appellee’s property made by the County Council of Prince George’s County, Maryland, sitting as the District Council for that part of the Maryland-Washington Regional District in Prince George’s County. On May 2,1978, by Council Resolution 40-1978, the District Council adopted a Sectional Map Amendment for Planning Area 81A in the County. By this action, 12 acres of land owned by appellee, Equitable Trust Company, were downzoned from the C-l (Local Commercial, Existing) zone to the R-80 (Single Family, Detached Residential) zone.

Appellee filed an administrative appeal to the Circuit Court for Prince George’s County, and by an order entered January 30, 1979, that court reversed the District Council’s action as it affected appellee’s land, finding that the District Council had no power to downzone such property. The Council and Prince George’s County, the respondents below, are the. appellants herein, and Equitable Trust Company, Inc. is the appellee. In September 1974, the County Council of Prince George’s County, Maryland, sitting as the District Council for the Maryland-Washington Regional District in Prince George’s County, passed Council Resolution 93-1974, which directed the Maryland-National Capital Park and Planning Commission (the Commission) to prepare a proposed Sectional Map Amendment (SMA) for Planning Area 81A, known as Clinton-Tanglewood. This planning area, covering over 9500 acres, includes the properties which are the subject of this case — two lots totalling approximately 12 acres at the northwest corner of Chris-Mar Avenue and Old Branch Avenue in Clinton, Maryland.

The Equitable properties, acquired by it in 1977, had been zoned C-l (Local Commercial, Existing) for many years prior to 1974. In 1977, during the final stages of the SMA process before the Planning Board, Equitable’s 12 acres were subdivided into two lots. The smaller lot of approximately 0.8 ²⁷⁴ acres fronting on Old Branch Avenue and a short distance north of the intersection with Chris-Mar Avenue was subdivided from the remainder of the land owned by Equitable for the purpose of instituting commercial retail development permissible under the C-l zoning in effect at that time. The remaining lot of 11.2 acres was not developed for commercial use at any time before the Clinton-Tanglewood SMA was finally approved and is still mostly vacant and unimproved.

Located on this lot are several residential and incidental structures none of which were used for commercial purposes. During the SMA process before the District Council, Equitable was able to begin commercial development on the 0.8 acre lot on Old Branch Avenue. Early in 1978, Equitable entered into a contract to sell this property to A&R Builders, Inc. which is not a party in this case. On March 10,1978, after there had been initial hearings on the Clinton-Tanglewood SMA before the District Council, Equitable and A&R applied for a building permit for a commercial structure on the 0.8 acre property.

The permit was issued on April 26 after the final Council public hearing, and A&R was able to pour footings and partially construct the walls of its commercial building before May 2, the date of final SMA approval. There is some indication that the District Council was aware of Equitable’s development activities at the time of the final SMA approval. The chronology of the final stages of the Clinton-Tanglewood SMA process dates back to July, 1977, when the Planning Commission released a proposed SMA for public inspection. This “Public Release” designated the Equitable properties as Change M5 and recommended that they be rezoned from C-l to R-80 (One-Family Detached, Residential).

On September 28,1977, the SMA as proposed in the “Public Release” was reviewed in public hearing before the Planning Board. At this hearing, Equitable’s representative acknowledged to the Board that the properties were in a residential area. The Planning Board’s final SMA proposal was transmitted to the District Council on November 29, 1977. In the final transmitted document, called the ²⁷⁵ “Technical Summary”, the subject properties in Change M5 were recommended for rezoning from C-l to R-80.

Public hearings before the District Council on the proposed SMA were held on February 28, March 1, and April 12, 1978. After the second hearing, Council Resolution 33-1978 was passed, in which the Equitable properties were proposed for rezoning from C-l to C-A (Ancillary Commercial), R-T (Townhouse), and C-S-C (Commercial Shopping Center). These changes from the Planning Board’s proposal, given in Amendments 38, 38-A, and 39 of CR-33-1978, were supported by Equitable’s representatives. At the public hearing held on April 12, 1978, several residents of the area near the Equitable properties objected to the proposed amendments, and after the hearing, the Council reinstated the R-80 zoning the Planning Commission had recommended.

And finally, on May 2, 1978, the Council, by Resolution CR-40-1978, adopted the final Clinton-Tanglewood SMA by which both the 0.8 acre parcel on which there had been partial commercial development and the remaining 11.2 acres were downzoned to R-80. While the proceedings we have heretofore noted were occurring, Equitable and A&R Builders, on March 10, 1978, applied for a building permit/use and occupancy permit to construct a retail commercial structure on the 0.8 acre lot. That portion of the total ownership of Equitable had been subdivided with a final record plat being approved on April 21, 1978. On April 26, 1978, Prince George’s County issued a combination building permit/use and occupancy permit to Equitable and A&R Builders.

Footings were poured on April 26 and 27. Inspection and approval followed on April 27. By May 2, the date of the adoption of the Clinton-Tanglewood SMA, not only had footings and foundations been constructed, but walls were at least partially erected. On May 2, 1978, the Prince George’s Department of Licenses and Permits revoked the building permit for an alleged violation of the underground utility notice requirement.

An appeal of this action was noted to the County Board of Administrative Appeals which, on May 12, 1978, found that the action of the ²⁷⁶ Department of Licenses was improper and ordered reinstatement of the permit. The appellants appealed to the Circuit Court for Prince George’s County which affirmed the Board’s decision on June 16, 1978. In the interim, Equitable had timely noted an appeal from the Council’s action adopting CR-40-1978. After a hearing and argument, the trial judge ruled that the downzoning of Equitable’s 12 acres of property by CR-40-1978 was invalid.

It is from the order issued by the trial judge reaching this conclusion that this appeal was filed. Appellants raise two issues to be decided by this appeal. They are: I. Whether it was error for the lower court to equate the words “developed and utilized for the zoning applicable thereto” in the zoning ordinance with the “vested rights” concept from Maryland zoning cases?

II

Even if Equitable’s partially-developed lot of 0.8 acres was protected from SMA rezoning by the zoning ordinance, were the remaining 11.2 acres also protected? Appellee contends that before the adoption of the Sectional Map Amendment pursuant to Council Resolution 40-1978 by the District Council that it (Equitable) obtained a building permit and initiated substantial construction on the 0.8 acre portion of its 12 acre lot. Appellee asserts that it was protected from the downzoning action of the District Council which affected the appellee’s total acreage by the pertinent provisions of the Prince George’s County Code, Sec. 27-574.2 (b) which provides as follows: “Property that is developed and utilized for the zoning applicable thereto, and property zoned within five (5) years prior to the institution of the Sectional Map Amendment shall not be downzoned.” Appellee urges that its partial construction of a commercial building on the 0.8 acre parcel had the effect of preventing the rezoning of the 0.8 acre property from commercial to ²⁷⁷ residential and had the umbrella effect of also preventing the rezoning of the remainder of the entire tract. The Sectional Map Amendment process in Prince George’s County was adopted in order to provide a method to accomplish comprehensive rezoning of large planning areas.

See Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686 , 376 A.2d 483 , cert. denied, 434 U.S. 1067 (1978); County Council v. District Land Corp., 274 Md. 691 , 337 A.2d 712 (1975); Scull v. Coleman, 251 Md. 6 , 246 A.2d 223 (1968); Grooms v. La Vale Zoning Board, 27 Md. App. 266 , 340 A.2d 385 (1975). The process mandates an initial resolution from the District Council requiring the Maryland-National Capital Park and Planning Commission to prepare an SMA proposal for designated areas; a Commission study of the affected areas; and a "Public Release” document showing the Commission’s rezoning proposal. The procedure also requires a public hearing before the Planning Board; the preparation of a final “Technical Summary” from the Planning Board to the District Council; public hearings before the District Council; and a final SMA adoption by the Council on one of its legislative days. By means of this process, the Council may implement the various county plans and policies to be incorporated with a previously adopted master plan which controls land development within the relevant planning areas.

The entire process involving the Clinton-Tanglewood SMA spanned three and one-half years. At trial, the lower court was required to construe the meaning of the words “developed and utilized” as used in the applicable section of the Prince George’s County Code. In endeavoring to interpret the disputed terms, the court was confronted with a two-fold problem: (1) “developed” or “utilized” was not defined in the county code; and (2) the meanings to be ascribed to either of these terms as used in the